103 F. 457 | U.S. Circuit Court for the District of Western Tennessee | 1900
The defendant, being on trial for a criminal conspiracy in the accomplishment of which a deputy marshal of the United 'States had been killed, was entitled to 20, and the government to 5, peremptory challenges. Rev. St. §§ 819, 5508, 5509; Mill. & V. Code Tenn. § 5352.
Juror No. 6, having been accepted by both sides, took his seat in the box, but, upon hearing an argument as to a challenge for cause, himself announced that he felt disqualified to act impartially, and upon a further examination on his voir dire was set aside, without objection by either party.
The district attorney had peremptorily challenged two of the venire as they were called and examined on their voir dire, and the defendant six, when, the box became full. But before the jury had been sworn the district attorney asked to challenge peremptorily juror 9, who had been passed and accepted by both sides after their examination of him on his voir dire, to which objection was made by the defendant. By the Tennessee Code, it is required that, in “impaneling a jury for the trial of any felony, the court shall not swear any of the jurors until the 'whole number are selected for a jury.” Mill. & Y. Code Tenn. § 6050; Thomp. & S. Code, § 5215.. Always, in this court, in all cases, civil and criminal, it has been the custom to swear the jury en bloc, as also it has been in the state courts. At common law, however, as will be seen from the citations in theauthoritieshereinaftermentioned, the practice was to swear each juror separately as he was called, .qualified, passed, and accepted by the parties. After he had touched the hook, by authority of the court, it was too late to challenge him for either cause or favor, or peremptorily; though as to cause or
Before further examining the state practice in this regard, it may he well enough to remark that in the case of Brewer v. Jacobs, 22 Fed. 217, 231, 244, this court had occasion to examine the practice as to impaneling juries, both at common law and in this court. See, also, Clough v. U. S. (C. C.) 55 Fed. 921, 927. That practice was followed in this case, with that modification which becomes natural, if not necessary, in treason or capital cases, because of the statutory requirement that the defendant shall have a list of the jurors and witnesses furnished him not less than three and two entire days, respectively, before he is tried. Bev. St. § 1033. Such a list was furnished in this case, since the defendant may be punished capitally, as if on indictment for murder, and therefore, although the regular venire had been qualified generally, and juries for the term impaneled, as described in Ihe last-cited cases, and had been trying many cases, as each was called, yet, when this case was called, the venire, as it appeared by the furnished list, was recalled as if there had been nothing done. Each juror on the list, being sworn to answer such questions as should be asked him touching his qualifications, was examined by the court touching- his statutory qualifications, and then turned over to the parties for examination upon the voir dire, by their counsel. Thus, the box became full, as before stated. The jurors in question had been “accepied”; that is to say, each had passed successfully the scrutiny of examination, and had been told by both sides to take a seat in the box, which he had done, neither being challenged by either side for cause or peremptorily. Neither had either been sworn to try the case, nor had any of their fellows already seated in the box. Perhaps either side might have reserved all peremptory challenges until the full 12 men had been thus “impaneled” or offered to them as a qualified jury.
Other authorities seem contrary to this, and perhaps the law upon the point has not been authoritatively settled either way, so that it may be certainly ruled. Thomp. & M. Jur. § 266 (2), citing Brandreth’s Case, 32 Howell, State Tr. 773, and other cases on that side of the conflict; but also still other cases, too numerous for citation here, in accord with those first cited above, in favor of the right of reservation until the full jury is tendered. The author seems to favor this view, also, but the cases cited are not now accessible for our critical examination. The existence of the conflict accounts for the act of 1817 in Tennessee, and explains it. We have 'adopted the view that the time of all challenge is prolonged, in felony cases, at least; and while this indictment for conspiracy may not be, technically, a felony, it is beyond question that it is of that gravity that demands the same construction in its favor.
Returning for a moment to the relation of the actual practice in this case, it may be said that, in accordance with the custom here, and in the state practice as well, neither side pursued the better practice, if it were open to him, of reserving peremptory challenges for a full jury, qualified on voir dire, and ready to be sworn; but each exercised the right of peremptory challenge at once, as soon as the juror appeared and qualified, or as soon as any challenge lodged for cause was overruled by the court. Ordinarily, in common cases, one of the two juries impaneled at the beginning of the term is in the box when the case,, civil or criminal, is called, and is thereby tendered to the parties. Either side examines for cause, and, the challenges being settled, quite always, as a fact, a full jury is in the box when the right of peremptory challenge is exercised. But in cases like this, where the jurors are called up, one by one, for examination and tender, we have fallen into the habit of overlooking the value of reservation, and the peremptory challenge follows an adverse ruling on a challenge for cause, or is promptly made without any preliminary examination whatever, as is often the case. If all the peremptory challenges are exhausted in the process, of course there can be no more, and this is so often the situation that, perhaps, we get the idea that it is too late after the juror has taken his seat, although he has not been sworn. Our Code has also, in state practice in civil cases, given an option of drawing the jury. Thomp. & S. Code, § 4026. If we followed the strict common-law practice, and did not mix the two, statutory and common law, as we do, it would, indeed, be too late; because before the juror had taken his seat, if there were no challenge for cause or peremptory, he would have “touched the book,” and been sworn already to try the case on its merits, each separately, and not en bloc, as we always swear them. Thomp. & M. Jur. §§ 269, 269 (6). This particularity of our habits of practice is given because it lights up the obscurity and confusion of right in the premises as it is developed by the authorities. Id. §§ 265, 270.
There would remain no doubt of this ruling but for the decision of the supreme court of Tennessee in the case of McLean v. State, 1 Tenn. Cas. 478, 482, where, under almost precisely the circumstances of this case, the defendant asked to challenge a juror peremptorily after he had been “accepted” and in the box two days, but before being sworn. First, it may be remarked that this case has never been officially reported, and we do not know how far the supreme court of the state may regard that fact as affecting its authority. Often courts do not desire such cases to be considered as binding precedents, and until tbe question is again mooted in that tribunal we may not be advised as to its authority. Next, it is very remarkable that the act of 3817 (Thomp. & S. Code, § 5215; 31 ill. & Y. Code, § 6050), above quoted, was not noticed, and seemingly was entirely overlooked. Its pertinency is absolutely unquestionable, and, as before remarked, to my mind is conclusive in favor of the right of peremptory challenge under
“It is insisted the defendant had the right of peremptory challenge at any time before the jury was sworn to try,.the case, and a number of cases holding the doctrine have been cited. While we concede the courts so holding are tribunals of high authority, we cannot concur with them on this question.”
The argument then proceeds to point out the inconveniences, “under our system,” of allowing the challenge, and cites the one statute, overlooking the other, also a part of the same system, which, if my judgment is' not at fault, was enacted in 1817 for the very purpose of adopting the ruling of these discarded cases from other courts. The argument ab inconveniente would not have been allowed to prevail over the command of another section of the 'Code, if its importance had been called to the attention of the court. The opinion cites no cases whatever, and, the reporter not having furnished us with those cited by counsel, we are left in the dark as to the extent or scope of the authorities from which the dissent was expressed.
In McClure v. State, 1 Yerg. 206, 213, 219, it is said by Whyte, J., that “the proper time for challenging is between the appearing and. the swearing of jurors,” — citing the common-law books (1 Chit. Cr. Law, 545; 2 Hawk. P. C. c. 43, § 1; 1 Inst. 158a; and Case of Lang-ham, Hob. 235); and by Catron, J.:
“Tbe anpient and well-settled English authorities are that you cannot challenge the juror after he has been sworn, unless it be for cause arising after-wards. We adopted the right of trial by jury as we found it,” etc. “Nothing is better settled for centuries in England than that after a juror is once sworn he cannot be challenged for any pre-existing cause.”
—Citing 1 Inst. 158a; 3 Vin. Abr. E. 11, p. 764; 1’Yel. 24; 2 Hawk. P. C. c. 43.
As will be seen by examining the authorities, it was just as well settled that until he “took the book” to be sworn the right of chai
The case of Gillespie v. State, 8 Yerg. 507, reiterates the ruling of McClure v. Same, supra; and is followed again in Ward v. Same, 1 Humph. 253; and yet again in Calhoun v. Same, 4 Humph. 477; also in Jarnagin v. Same, 10 Yerg. 529. In the case of Garner v. State, 5 Yerg. 160, where a juror had fallen sick after the trial began, the act of 1817 was much considered in its relation to peremptory challenges, and the case is instructive, though the matter of time of challenge was not in hand. But the case shows all through it, by frequent expressions, that the practice was well understood to be that the right of peremptory challenge, as well as that for cause, could be exercised at any time before the juror was sworn; and that each juror was not sworn, as at common law, separately, and as he appeared and qualified, but afterwards, when the jury was full. Nor is there any hint that his “election” or “acceptance” terminated the right of challenge if he had not been sworn, but sat in the box awaiting a full jury for that ceremony, as one of the sections of the act of 1817 required, and as the Code already quoted requires to-day. Judge Whyie, quoting Baron Wood in Rex v. Edwards, 4 Taunt. 309, 3 Camp. 207, says he directed that the new jury be sworn, and that the prisoner “was directed by the judge to challenge each of them, if He would, as they came to the book to be sworn”; showing that the utmost limit of the right was not passed until that moment. Should the fact that we do not now swear the jury separately upon the book, but all together, with uplifted hand, when the jury is completed, alter this rule?
The suggestion was not made that it does by any of the opinions in the last-cited case, which so learnedly detail all essentials of the practice of impaneling juries in criminal cases, as known in Tennessee at that date and under the act of 1817.
In the case of Hines v. State, 8 Humph. 597, the court speaks of a juror having been “accepted” by the attorney general, and “elected” by the defendant, — the very situation of both the jurors involved in this objection, — but it was ruled that the court might for any good cause discharge a juror that had been “selected,” and select another, “until the jury shall have been sworn in the case.” And so it was- ruled in Lewis v. Same, 3 Head, 127, where precisely the same argument was made by counsel as here, that “after the panel was made up, by the election of the prisoners from the list of jurors presented to them, the jury was in law impaneled, and was as much the jury for the trial of the cause before being sworn as afterwards.” The court says: “The discretionary power of the court to reject a juror, before being sworn, even in a capital case, for sufficient cause, cannot at this day be questioned.” This was not a peremptory challenge, it is true, but it shows how open the jury is, until it is sworn, to challenge and change. The defendants then, as here, had not exhausted their challenges, and there could be no injury to him.
In Murphy v. State, 9 Lea, 374, also, a juror was challenged for cause by the state after he had been “selected,” and even after he had been precipitately and prematurely sworn by the clerk, the swearing having been done so hastily that the counsel had not time to get in the objection he was endeavoring to make. The case shows the general rule. Again, it was not a peremptory challenge; but, again I repeat, it does not seem a material distinction, or any principle that should control a different judgment in either case.
Still another case is Taylor v. State, 11 Lea, 708, 718, where the juror had been “selected” two days, and before being sworn was thus discharged on challenge by the state for cause. The court said there could not be a serious question of the right, and the only matter for consideration was whether the court should have broken up the jury, and summoned a new jury, which was held not to be necessary.
In Boyd v. State, 14 Lea, 161, 165, after six jurors had been “elected,” one of them, on his relationship to the parties being mentioned as a ground of challenge, stated that he should feel embarrassed, and he was discharged, although he was not technically disqualified. The discretionary power of the court was fully recognized. And Judge Story’s remarks in U. S. v. Cornell, 2 Mason, 91, Fed. Cas. No. 14,868, aré quoted and approved, that, “even if a juror was set aside for insufficient cause, I do not ímow that it is a matter of error, if the trial has been by a jury duly sworn and impaneled, and above all exceptions. Neither the prisoner nor the government in such a case has suffered injury.” The statement by the juror of self-challenge in that case, as in this, was given weight by the court in exercising its discretion. They may challenge themselves. Thomp. & M. Jur. § 263. In Fletcher v. State, 6 Humph. 249, 256, a juror, on his own application, was permitted to stand aside for physical distress without the express consent of the prisoner, and it was held that the court had the power, and there was no error. This power is now conferred by statute, under the often-cited act of 1817, regulating the practice (Thomp. & 'S. Code, § 4028; Mill. & V. Code, § 4804).
And here, it may be said, in view of the objection taken in this case as a ground for a new trial, that one of the jurors on the list furnished the defendant was excused by the court on account of sickness before the case was called for trial, that if the court may excuse for that cause, under the statute, after the juror has been sworn, without breaking up the panel and beginning over again, it may also do so before the venire is called. It is a matter of necessity oftentimes, and the statute was passed, as these decisions all show, in the face of some dissenting opinions, to settle the conflict of practice, and avoid the necessity of beginning all over again after a panel was broken by sickness. The text-books- are to the same effect. Abb. Tr. Ev. c. 2, § 21, p..23; Thomp. & M. Jur. §§ 116, 159, 242, 259 (2), 259 (1),
Por my part, in judicial procedure, I am always anxious to conform the federal to the state practice where it is possible, not only for convenience, but because, also, courts and lawyers naturally fall into a habit of conformity .such that unless distinctions are especially familiar, and more than technical, no attention is paid to them, or they pass sub silentio. The conformity act applies only to civil cases, indeed, but it promotes the habit in other cases as well, particularly in those mere details where refinement was deprecated by Mr. Justice Catron, when the great desideratum of impartial trial jury had been attained in fact Therefore, when confronted with the case of McLean v. State, supra, it became a matter of concern that our long-fixed practice to the contrary in this regard had been challenged. This investigation develops that in this state that case stands alone in its ruling on this point, substituting the time when the juror is “accepted” or “elected” or “passed” as the foreclosure of the right of peremptory challenge for the time when he has been sworn, which was the foreclosure period at common law and under the act of 1817 in this state, passed as to one section for the very purpose of securing the longest and latest time. Mill. & V. Code, § 6050; Thomp. & S. Code, § 5215: Thomp. & M. Jur. §§ 265, 266 (2).
But the final and all-sufficient answer to the objection is that, whatever the state practice in this regard, it is not binding on the federal courts. Thomp. & M. Jur. § 164; U. S. v. Shackleford, 18 How. 588, 15 L. Ed. 495; U. S. v. Marchant, 12 Wheat. 480, 6 L. Ed. 700; U. S. v. Coppersmith (C. C.) 4 Fed. 198, 199; U. S. v. Richardson (C. C.) 28 Fed. 61, 69; Lewis v. U. S., 146 U. S. 370, 376, 379, 13 Sup. Ct. 136, 36 L. Ed. 1011; Pointer v. U. S., 151 U. S. 396, 405 (2), 412, 14 Sup. Ct. 410, 38 L. Ed. 208; St. Clair v. U. S., 154 U. S. 134, 147, 14 Sup. Ct. 1002, 38 L. Ed. 936; Logan v. U. S., 144 U. S. 263, 299, 12 Sup. Ct. 617, 36 L. Ed. 429.
The practice in this case was not precisely that described by the supreme court in either of the above-cited cases, but was that of the common law, as modified by the Tennessee statute before cited, and
In the cases cited, the Arkansas practice of challenging is not given, but Mr. Justice Shiras in the Lewis Case quotes from the English cases, that the uniform practice has been that the juryman is presented to the prisoner and his counsel, that they may have a view of his person. Then the officer of the court looked first to. the prisoner’s counsel, to know whether they wished to challenge him. He then turned to the counsel for the crown, to know whether they challenged him; and, if .neither made any objection, the oath was administered. And before any juryman was “brought to the book” the whole panel was called over in his hearing, that,the prisoner might take notice who attended. Neithei' does the Pointer Case show what the Arkansas' practice was, but both cases say that it was not binding on the federal courts, and that it. was not followed in either case. Mr. Justice Harlan again quotes the common-law authorities, and on the point as to the time of challenge cites Chief Justice Tindal in Reg. v. Frost, 9 Car. & P. 129, 137, saying that “the rule is that challenges must be made as the jurors come to the book, and before they are sworn. The moment the oath is begun it is too late, and the oath is begun by the juror taking the book, having been directed by the officer of the court to do so. If the juror takes the book without authority, neither party wishing to challenge is to be prejudiced thereby ” It is no doubt because of this strictness that the Tennessee statute was passed deferring the swearing of the jury- until after the whole had been passed on their voir dire. The court decides that this is not necessarily the only mode, and that both cases say that the primary consideration always is that the accused shall not be embarrassed or prejudiced or injured by any mode adopted, the purpose being to secure all his rights of challenging the jurors. This being done, and no injury shown to him, if an impartial jury is secured the end of all practice is attained. He cannot demand that the prosecution shall challenge first, for at common law the prisoner challenged first; but in this case, following the state practice, the government was called on first, according to our uniform habit.
In the St. Clair Case, the court had a general rule adopting the state practice; except that it in terms required, as at common law, that each juror should be finally sworn to try the case when he was called in his order, and, being examined on his voir dire, there was no challenge by either party. This closed, as at common law, all question of further time to challenge. But Mr. Justice Harlan again says it .is open to the federal courts to adopt any system that does not prevent or embarrass the full and unrestricted exercise of the accused of his right of peremptory challenge, and is not inconsistent'with any settled principle of the criminal law. That is the test The practice
Another sufficient ground for overruling the objection is that the defendant, having had at the time of swearing the jury 14 of his peremptory challenges left, could not have been injured, since his right is that of rejecting undesirable jurors, and not that of selecting those he most prefers. The foregoing cases decided this. See, also, Hayes v. Missouri, 120 U. S. 68, 71, 7 Sup. Ct. 350, 30 L. Ed. 578; Hopt v. Utah, 120 U. S. 430, 436, 7 Sup. Ct. 614, 30 L. Ed. 708; Spies v. Illinois, 123 U. S. 131, 168, 8 Sup. Ct. 21, 31 L. Ed. 80; Alexander v. U. S., 138 U. S. 353, 11 Sup. Ct. 350, 35 L. Ed. 954.
This ruling sufficiently disposes of several of the other grounds of motion for a new trial. It was conceded to counsel for the defendant that the rule in Tennessee is very strict; that every separation of the jury is prima facie an injury to the defendant, and throws the burden on tbe state of explaining by proof that no injury took place in fact. Hines v. State, 8 Humph. 597; Odle v. Same, 6 Baxt. 161; King v. Same, 91 Tenn. 617, 625, 20 S. W. 169. But, even in Tennessee, unimportant and casual separations, where it is apparent that there was no opportunity for tampering with the jury, afford no ground for a new trial. Stone v. Same, 4 Humph. 37; Jarnagin v. Same, 10 Yerg. 529; Luster v. Same, 11 Humph. 170; Rowe v. Same, Id. 492; State v. Turner, 6 Baxt. 205; King v. State, 91 Tenn. 625, 20 S. W. 169; Cartwright v. Same, 12 Lea, 625. The supreme court, so far as the court is advised, has not decided any case determining the rule as to separation. The chief justice, in Mattox v. U. S., 146 U. S. 140, 13 Sup. Ct. 50, 36 L. Ed. 917, refers incidentally to the various rules as to the effect of the mere fact of separation, but it was not decided; for in that case the injury to the defendant clearly appeared, a newspaper article being read to them by the bailiff. Xor have I found the subject much considered in other federal courts. There is a statute in Connecticut as rigid as the ancient common law forbidding a separation, even in civil cases, which the courts enforced when objection was taken, although counsel claimed it was a dead letter in actual practice. The court in a civil case regarded the separation in fact as faial in itself, and so enforced the statute. But it would not have been binding in a criminal case, as has been shown. Lester v. Stanley, 3 Day, 287, Fed. Cas. No. 8,277; Howard v. Cobb, 3 Day. 309, Fed. Cas. No. 6,755. But in Burrill v. Phillips, 1 Gall. 360, Fed. Cas. No. 2,200, in Rhode Island, Mr. Justice Story held, on argument, that it was discretionary with the court, and that the verdict would not be set aside if the conduct “be free from unfavorable presumption.” And counsel convinced him on ancient cominon-law authorities that if the jury misbehave their verdict would not he set aside of course, although the jury would be fined; but, if ihe misbehavior be aided by the party in whose favor the verdict would be given, then it would be set aside; and he cites St. John v. Abbot, Barnes, Xotes Cas. 441, as conclusive on the point. The report of the case cites the old common-law books to that effect also. In U. S. v. Gillies,
Perhaps the reason why so few cases are found in the federal reports is that it is only recently that writs of error have been allowed in criminal cases. Besides, the universal custom in federal practice is not to shut up a jury except in capital cases, or those of such grave character that the court, in the exercise of its discretion, directs it to be done. Indeed, the learned district attorney argues that, the jury having acquitted the defendant of the murder or other homicides imbedded in this indictment, the conspiracy of which he was convicted not having been declared a felony by the statute, there was no occasion to keep the jury together in the mere misdemeanor which it .was U. S. v. Coppersmith (C. C.) 4 Fed. 198. But the quick answer td-this is that they were kept together as a fact by direction of the court, and the rule of judgment should be the same.
■ Turning to the general authorities, it is clear that at common daw, as modified by modern practice, the strict rule of Tennessee that any separation is fatal, unless explained to have been innocuous, does not obtain, but the rule is that the defendant must show that he has been prejudiced by setting out something more than the bare fact of separation, unless the circumstances of the particular separation indicate of themselves a suspieion'of prejudice having been done. The last ábove cited cases all proceed on this rule in the federal courts, and they are supported by cases elsewhere. Thomp. & M. Jur. § 313, and cases cited; Rex v. Kinnear, 2 Barn. & Ald. 462; Rex v. Woolf, 1 Chit. 401; Thomp. & M. Jur. § 328, where the conflicting rule is considered.
The objection that the bailiffs placed in charge of the jury were not especially sworn would be fatal under the Tennessee practice, and this, also, was conceded to defendant’s counsel. Spain v. State, 8 Baxt. 514; Johnson v. Same, Id. 450; Clark v. Same, Id. 591; Maynard v. Same, 9 Baxt. 225; Duncan v. Same, 3 Tenn. Cas. 596; Wallace v. Same, 2 Tenn. Cas. 616; Buxton v. Same, 89 Tenn. 216, 14 S. W. 480; Lancaster v. Same, 91 Tenn. 267, 286, 18 S. W. 777; Lea v. Same, 94 Tenn. 193, 497, 29 S. W. 900; Thomp. & M. Jur. §§ 322, 327. But, like the other, this practice is not binding on the federal courts. We have the direct authority of the supreme court
There is no force in the objection as to the action of the court in suppressing the taking of notes by jurors. The court had noticed for several days that two of the jurors persistently and diligently took notes of all the testimony and of all the occurrences of the trial, and another juror occasionally took notes of the evidence. The attention of counsel was called to it, with the result that the jurors were directed to discontinue the practice, and were required, after explanation of the reason of it, to seal up the notes they had taken, and deliver the envelopes to the marshal for safe custody, these being returned sealed as they were by themselves to the jurors after the trial. There was an exception by the defendant to a juror’s taking notes by permission of the court in Agnew v. U. S., 165 U. S. 36, 45, 17 Sup. Ct. 235, 41 L. Ed. 624; but nothing came of it, because the record did not show that any notes were taken in fact. But the practice is an improper one. Thomp. & M. Jur. § 390. It gives the juror taking notes an undue influence in discussing the case when he appeals to his notes to settle conflicts of memory. Without corrupt purpose, his notes may be inaccurate, or meager or careless, and loosely deficient, partial, and altogether incomplete. With a corrupt purpose, they may be false in fact, entered for the purpose of misleading or deceiving his fellows when he comes' to appeal to them. There is no protection against such dangers except to forbid the practice. It is allowed by statute in some states, which would imply that without a statute it is not permissible. Id. § 402. It is perhaps a matter within the discretion of the court, like others that character.
The defendant lodged exceptions to every action of the court on a challenge for cause allowed by the court, and to every challenge for cause disallowed, and the.rulings are assigned as ground of motion for new trial. The jury was sworn with Í4 of the 20 peremptory challenges unused, which is conclusive that he could have set aside any juror as to whom a cause for challenge had been disallowed, not satisfactory to him. He had no right of selection of those where the challenge for cause was improperly allowed. Therefore no injury was done, as by the nonuser of his peremptory challenges he has demonstrated that the jury was impartial. There can be no ground for new trial in this, as the cases already cited from the supreme court itself abundantly show. Thomp. & M. Jur. § 271; Henry v. State, 4 Humph. 270; Hines v. Same, 8 Humph. 597. But the challenges were proper under any circumstances. Two of the jurors stated that á former
The last ground of the motion for new trial necessary to notice is that based on the alleged defect in the indictment, it has been fully disposed of in the progress of the trial, and the instructions to the jury explained the peculiarities of this indictment and of this prosecution. To put the objection in the language of counsel, the defendant has been put on trial for murder, and the conspiracy for which he has been convicted is not within the law of murder or homicide. The conclusive answer is that under Eev. St. §§ 5508, 5509, the defendant has not been tried for murder or homicide of any grade, notwithstanding the appearances of things. He has been tried for a conspiracy, accurately defined in the statute and the indictment, not to murder the deputy marshal whom he killed, but to deprive him, and the marshal whom he wounded in the combat between the conspirators and the marshal’s posse, of their constitutional right to arrest him on legal process, or, to use the language of the statute, of the free exercise or enjoyment of a right or privilege they had in respect of his arrest: on process under the constitution and laws of the United 'States. He is charged by the indictment in all its counts with having so conspired to “injure, oppress, threaten, and intimidate” these citizens in the exercise or for having exercised that privilege or right so guarantied them.
He has not been charged and tried “for two separate and distinct offenses at the same time,” nor for two independent offenses, in the same indictment. In the Pointer and other cases, supra, the su:
The court concedes that it would have been better if this indictment had contained a count charging only an effective conspiracy, disassociated with the resulting' murder of the deputy marshal, and relying for donviction only on the injury, the oppression, the threatening, and intimidation which resulted in' the deprivation of the essential privilege of the officers, as citizens; which were, all of them, found not only in the murder ,of Gamer, the deputy, but in the serious wounding of Brown, the marshal himself, and in driving off the whole of the posse by force of arms and bloody battle, and, moreover, in the successful defeat of the service of the process by arrest. But this is not necessary, and the conviction can be sustained on the indictment as drawn, although the prosecution has failed, in the opinion of the jury, to establish murder, as one of the results of the effected conspiracy. The conspiracy is, none the less, established by the killing, the wounding of one not killed, the intimidation of the others, the very use itself of violence, and the successful accomplishment of the purpose not to be arrested. The technical, statutory conspiracy is properly charged and abundantly proved^ although no “other felony or misdemeanor” has been committed by the laws of the state. Rev. St. § 5509. Independently of the laws of the state, the federal offense has been committed, and the conviction was proper, whether any other crime resulted or not.
It is useful to explain that this indictment was found soon after the outrage on the officers and their constitutional privilege was done; but the defendant, when arrested finally, was put on trial for the original offense of illicit distilling, and, being convicted, has been serving a four-years term of imprisonment for that offense. The motion for a new trial having been overruled, the defendant was, on motion of the district attorney, sentenced to the full penalty of the statute. Rev. St §§ 5508, 5509.